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Blawg Review #15

a/k/a “That 70s Show”

Doing a lousy job coordinating their calendars, my three warring personalities (actually personas) each scheduled something very different for this past weekend.

Lawyer George obtained an extension of the deadline for a summary judgment reply until today, so he could put the finishing touches on it over the weekend.

Instead, interference by the other two Georges, not reasonably foreseeable, forced Lawyer George to work Eight Days a Week, including many Hard Day’s Nights, to get the reply done by Friday afternoon.

Meanwhile, without even asking Lawyer George if he was free, Blogger George rudely agreed to host the Blawg Review this Monday.

To make matters worse, Personal-Life George, on a frolic and detour of a self-centered, somewhat decadent, and perhaps even licentious character, planned his fourth annual weekend reunion with his 60s and 70s junior high and high school friends in his hometown, Bloomington Indiana, a four-hour drive from St. Louis (which is where all three Georges presently reside, seeking a humble and peaceful coexistence under one roof.)

Come 3:30 PM Friday, Personal-Life George took the wheel. (Well, really he just took control of the weekend agenda; exhausted from Lawyer George’s abusive workaholic lifestyle, he turned the driving over to his just-turned-17 daughter, who handled some very challenging driving like a champ—including a long, curvey Indiana backroads detour after dark, with rain and fog—her longest road trip at the wheel to date.)

Struck by the spirit of the reunion, Personal-Life George bought a tie-dyed Grateful Dead T-shirt just like this one. It reeked of incense from the head shop where he bought it, thus triggering a Proustian moment that instantly triggered an epiphany: The way to keep Blogger George and his obtrusive Blawg Review project at bay throughout the reunion partying would be to settle on a Review theme that would complement the weekend’s return to Yesterday as a fine wine complements a fine meal (not that any of the Georges gives a hoot about that subject).

So, long story short (OK, its long already), Blogger George is now home after a thoroughly enjoyable, if all too brief, reunion with some of the most interesting, engaging, funny, loving, and smart people he’s ever met (only one a lawyer). And he has, perhaps foolishly, enthusiastically embraced the Review-theme-concept from Personal-Life George’s epiphany.

Now, therefore, hereinafter, and henceforth [Lawyer George just couldn't resist a throwaway synonymous trio of legalese], this Blawg Review shall comply strictly with the following strictures:

Here’s the playlist of groovy hits:

Now, get on the bus, click over and rock on with Blogger George . . .


(I Don’t Care Too Much for Money, Money) Can’t Buy Me Love (law firm compensation)

At Adam Smith, Esq., Bruce writes about a law firm compensation concept that to me is both mysterious and distasteful-sounding: “Lockstep.” It supposedly has a wonderful, magical impact on a firm, achieving “fantastic alignment between the interests of our clients and of our partners.” Eat What You Kill’ May Be Good for You, But What About Your Clients?“

Sorry, but “Lockstep” sounds too much like “goosestep” – and way too conformistly stifling — for my taste. Maybe just bad name choice. But I can’t imagine a system under which greedy lawyers won’t bicker about money. IMHO it’s less the system than the relationships between the people – and between the people and their money. . . [end of sermon].

Eight Days A Week / HELP!

Patent Barristas [Look at this blog for the graphics, if no other reason] express a very serious concern for all professionals: “Misconduct (and Not Just Scientific) is a Problem for Everyone.”

In “Misconduct (and Not Just Scientific) is a Problem for Everyone,” Stephen ties together stats on reported allegations of scientific misconduct, overwork in science and medicine, and overwork in the legal profession.

One researcher testified that he was working 80 to 90 hours a week, seeing patients two days a week, doing surgery one day a week, supervising medical residents, serving on as many as 10 different committees at the hospital and the medical school and putting on national medical conferences. He sought help from a psychiatrist who counseled him to cut back and from his boss who demanded he increase his research and refused to reduce his patient load. . . .

[How many days a week does that all add up to?] Mentally and physically unhealthy at the individual level, highly destructive of long-term functioning at the collective level, and therefore not sustainable, IMHO.

This is not just a misconduct question here. This relates to quality of life for professionals as well as their communities. Do we want professionals to be well-rounded individuals capable of contributing to society at all levels or do we want billing machines?

The question answers itself. Next question. How to change this? Young professionals just starting out must offer their services on realistic terms, understanding the economics and tradeoffs. You can’t get that ridiculous starting salary if you don’t bill out the wazoo. You won’t even have time to enjoy spending it. Law firms must take a hard look at the economics and tradeoffs. You can’t build a healthy organization for the long term based on burning people out and making them miserable.

What would happen if the firm offered less money and perks in exchange for fewer billables? Conventional wisdom seems to be that a law firm can’t make that happen. Conventional wisdom is usually wrong.

Break the mold. All we have to lose is our chains . . . .

I Don’t Need No Doctor (dishonest and sick doctors and the lawyers who support and destroy them and take on drug companies)

Doctors made hundreds of bogus silicosis diagnoses a day, says the latest of a series of PointofLaw.com posts on a silcosis multi-district litigation hearing. A singularly suspicious statistic: “Though silicosis kills perhaps 200 people a year, somehow there were 20,000 silicosis lawsuits being brought in Mississippi alone. Judge Janis Graham Jack, in a blistering 249-page opinion, held such evidence inherently unreliable.” Is there any merit to the other side of this story? If not, this may be an important example of a judge properly acting assertively in the Daubert “gatekeeper” role.

Speaking of unethical doctors, Robert Ambrogi’s LawSites hits us with an enticing five-word headline that’s a fine example of how a blogger can wrest attention from a busy RSS headlines-only reader, while incorporating two good keywords for search engines: “Case asks, Is blogging harassment?”

Turns out a Massachusetts MD used his blog to repeatedly profess love for a former patient, promising to divorce his wife if she’d marry him. Had the feelings been mutual, it would’ve been a cute Internet-Age version of the guy in the movies who comes up with a really creative and public way to propose — like the scoreboard at a ball game or an airplane-trailed banner. Had it happened in a less litigious era, even if the feelings hadn’t been mutual, it would’ve just been a tragic triangle, with the good doctor losing both women when the wife read the blog, and winding up lonely and bitter.

But the blog entries came on the heels of a restraining order, setting the doctor up for criminal harassment charges, with the blog becoming prosecution Exhibit A.

Overlawyered has this: “Ernst v. Merck opening statements” on this important Vioxx trial, with links to info on a “rogues’ gallery of plaintiffs’ lawyers helping out.”

Meanwhile, First Vioxx Trial is the Plaintiffs-side trial blog detailing the daily events of the first Vioxx trial, Carol Ernst v. Merck & Co., being heard in Brazoria County, Texas.

Observation: plaintiffs’ firms are way ahead of defense firms in using the internet and blogs for PR. When is corporate America going to wake up and start their own internet litigation propaganda campaigns?

I Love To Laugh

If you’re into Podcasting, check out this laughable parody ad for the iPod Flea.

Ball of Confusion (trademarking blog names)[following these two links to the song will give you a real taste of the times around 1970]

“Can Similar Blogs Names Co-exist?” Intrigued by the use of “Hot Property” as a blog name by both Business Week and RealtyBaron, Marty Schwimmer’s The Trademark Blog discusses applying the likelihood of confusion test and initial interest confusion doctrine to blogs. Also other questions about trademarking blog names, including how to trademark one’s blog name (Marty helpfully suggests: “I happen to be in that line of work”).

The Trademark Blog also has an interesting post about the phrase “Dykes on Bikes”not being suitable for trademark registration under the Lanham Act, as material that brings people into contempt or disrepute — even when sought to be used by a pro-lesbian biker club.

Similar issue to the N-word: a familiar and somewhat understandable double standard. Don’t call me a dyke; but I can call myself and my lesbian friends dykes all I want.

Kind of silly thing to litigate, IMHO. But then isn’t a lot of litigation these days kind of silly, with people convincing themselves that symbolic issues like the Ten Commandments in the courthouse are worth spending tons of money on? Frankly, I don’t get it. Well, really I do, but it doesn’t reflect well on our country. . .

What’d I Say trademark/speech issue)

Likelihood of Confusion by Ron Coleman has a brief note on a strange trademark situation/free speech in India, with the alleged infringement involving a political commentary critical of Coke, using one of its symbols. Can’t say that Have a Coke and a Trial

I Should Have Known Better (moderating some initial views of Grokster decision)

Legislating IP (an intellectual property law blog) “Innovation in the Post-Grokster Era” suggests at least some pretty smart lawyers know better that the likely impact of the Supreme Court’s Grokster decision will not be a didaster for innovation. Tim Marman says:

Many, including myself, initially thought the unanimous Grokster decision was a disaster for innovation. Some still claim it will significantly chill innovation as nuances of the inducement test are fleshed out in litigation, but it’s not the clear disaster that we once thought.

Sweet Home Alabama (strange branding concept)

Likelihood of Confusion by Ron Coleman also notes that “Colonel Sanders’s identity crisis” has now gone beyond playing the guitar lick from “Sweet Home Alabama,” when he’s supposed to be a Kentucky Colonel, ater all. Now, apparently KFC stands not for Kentucky Fried Chicken, but for “Kitchen Fresh Chicken.”

Hey, it is what it is. If they want to keep the same taste and secret recipe, they ought to stand behind the name. We all know fried chicken is fried for crying out loud! These marketing and branding gurus do some really lame stuff!

R.E.S.P.E.C.T. (humane treatment of foreign prisoners vs. torture by pop music and women)

In Balkinization, Marty Lederman considers at length the respect (humane treatment) due al Qaeda and Taliban detainees, drawing diverse comments.

The military also subjected detainees to bombardment with what the Report euphemistically calls “Futility Music”—Metallica, Britney Spears and “Rap music” are singled out for special mention (pp. 9, 16-17)—along with strobe lights. This technique is said to be authorized under the auspices of the “Incentive” and “Futility” Field Manual techniques, because it includes (p. 16) “acts used as reward for cooperating or to create futility in not cooperating.”

My favorite comment (I won’t say I agree):

It doesn’t seem so ‘inhumane’ to me to have a female guard dance around and rub against a male detainee, . . . deprive the inmate of his clothing, . . . smear fake menstrual blood on him etc. Many on your side of the aisle would (a) think this was funny if done to a conservative Christian, . . . and (b) argue strenuously that female prison guards may not be deprived of equal employment opportunity, meaning that female guards most certainly do conduct strip searches of male inmates, United States citizens, in United States prisons, even if those prisoners are devout Muslims or conservative Christians. So since we do this kind of thing to our own, with judicial and left/liberal academic blessing, I can’t get too outraged about doing it to our enemies, and neither can most Americans.

My two cents: in general, psychological “torture,” including nakedness, religious disrespect, loud nasty music, and sleep deprivation doesn’t trouble me that much for enemy combatants, but I sure don’t tust the system in place for determining that people belong in that category, especially without legal representation. Further, I tend to question whether the intelligence benefits outweigh the fanning-the-flames-of-hatred cost.

Now you must read this: “Respect: Aretha Franklin, 1967″ (it’s about so much more than the song; and a remarkable segue to the above post that Google served up for us; it’s stumbling onto stuff like this that makes me such an Internet addict!)

My World Is Empty Without You, Sandra Day

Jottings By An Employer’s Lawyer starts the Supremes roundup here with:“When 2/3 Of Your Panel Are Supreme Court Possibilities,” reviewing an opinion on a rather fine point of federal jurisdiction relating to labor law preemption — there’s a fun subject eh? — by a panel that includes a couple of Supreme hopefuls (wannabes?).

Chris Geidner’s Law Dork is already sick of the gathering Supreme storm, linking to a post elsewhere that “pre-emptively attacks a group — Stonewall Democrats — for, um, not pre-emptively attacking Bush’s Supreme Court nominee.” Law Dork sez: “Yeah I don’t get it either. Apparently, [per the other post]. . . the group is somehow politicizing things by ‘not taking a position on potential nominees until a candidate is actually nominated.’ Ugh.”

Double-triple-super ugh.

Related to the Supreme Court nomination process is this from Ex Post: “The Ticking Roe Clock” (Is Stare Decisis for Suckers?); this from Crime & Federalism: “My Answers”; and this from Matt Schuh Online: “Vacancies and Vacations”

We Can Work It Out (mediation blog)

Online Guide to Mediation: “When Push Comes to Shove: Putting an end to coercive judicial settlement practices” If you have any interest at all in mediation and settlement (what litigator or litigation client doesn’t?) check out this fine blog. No reason to single out this entry, except it was submitted. It’s all good, and the creator, Diane Levin, shares my desire to use photographs to keep the blog colorful and lively, doing so well.

Folsom Prison Blues (life with or without parole)

Legal Commentary describes “A disturbing CA habeas decision” holding that parole may be denied based on aggravated facts regarding the underlying crime, even facts not reflected in the degree of convicted crime, meaning:

[A]ny indeterminate life sentence with a possibility of parole can be effectively converted into a life sentence without possibility of parole. . . . [and] subsequent rehabilitation, no matter how successful, [may be] irrelevant.

Baby You Can Drive My Car (strange FMLA excuse)

Ross’ Employment Law Blog has this fetching tale: “Fetching a car is not FMLA-protected leave.” Charles Tellis’ wife was having late-stage pregnancy difficulties. Then Charles’ car broke down. Although he lived in Seattle, he had another car in Atlanta, so he flew there to drive the car back to Seattle. While he was gone he made several phone calls to his wife, and she gave birth.

Upon his return, Charles’ employer discharged him for being absent without the required advance approval. Charles claimed his absence was an FLMA-protected leave. The 9th Circuit disagreed.

Charles argued that retrieving the car gave his wife psychological support, and his phone calls provided moral support and psychological support.

The 9th Circuit said “care for” “involves some level of participation in ongoing treatment of [the family member's] condition.” Said the court, “Instead of participating in his wife’s ongoing treatment by staying with her, he left her for almost four days.”

Thank God there are some limits to FMLA!

That’s All Right Mama (doula liability, mother penalty and father bonus)

The Mommy Blawg puzzles over “Doula Liability”: “This legal question popped up . . . Should doulas carry emergency childbirth kits when providing home labor support? Factual background: A labor doula is a woman who supports a woman in childbirth.”

I was a doula-skeptic. Why pay more? Aren’t we and our insurance company paying the hospital and ob-gyn enough, I asked my wife 12 years ago? Of course, she got her doula, and it was money well spent. The doula, and I, and the ob-gyn all were needed to help my wife push my stubborn son out.

Jottings By An Employer’s Lawyer writes: “Hiring Decisions: The Mother Penalty, The Father Bonus,” noting “two Cornell sociologists have determined both exist [and] recently presented [a] study showed the following ranking (from best to worst) in terms of hiring decisions and starting salaries: fathers, childless women, childless men, mothers.”

Birthday

Speaking of Jottings By An Employer’s Lawyer, Happy Blawg-Birthday — three years — to Jottings, created by Michael Fox.

I started this Blawg (a bit over two years ago), knowing Jottings was the main “competition.” It soon became obvious to me that the universe of blawg-worthy material was more than adequate to keep us from being redundant.

Jottings is frequently included in my HR/Employment Blogosphere Updates, because of the consistently well-summarized case analysis, something I often lack time for. Jottings has been a good competitor in setting a high standard and inspiring me to reach out in a slightly diferent direction — making this Blawg somewhat more HR-oriented.

Everybody’s Got Something to Hide Except for Me and My Monkey (drug-busted employees may get second chance)

All Deliberate Speed, a blog devoted to discussions of topics of interest in civil rights and employment law, posts: “DC Circuit: Cameras in the Workplace”

Anheuser-Busch (mmm, beer) installed a hidden camera with a special night-vision lens in a work/break area that it suspected employees might be using for illegal drug use. Sure enough, the camera caught employees engaged in such activity and discharged them.

“You are SO busted!” But their union fought hard for them, and won an important victory for employee privacy in the union context, requiring bargaining over hidden cameras. Now, something like 7 years later, there is some possibility the NLRB will actually order them reinstated with back pay.

See also my illustrated version of this story, below.

Please Mister Postman

Benefitsblog posts: Not All Postmarks Are Created Equal

The tax law has a “timely-mailed, timely-filed” rule. If an item is postmarked by a filing deadline, the postmarked date is the filing date, even if it is received later than the filing date.

Not all postmarks are created equal. A hand-stamped postmark received at the post-office — like the one in the above picture — is golden. An office postage meter isn’t nearly as convincing, for obvious reasons.

Taxman

Benefitsblog also provides some helpful resources pertaining to the proposed regulations under Section 415 of the Internal Revenue Code dealing with limitations on benefits and contributions for qualified plans. “Proposed 415 Regulations: Links”


When I’m Sixty-Four

Benefitsblog links to list of Retirement Blogs

Paperback Writer (noted blawgers-turned writers vent a bit; more on blawging)

In Jeremy’s Weblog, Jeremy Blachman, f/k/a Anonymous Lawyer, takes us inside his mind with “The first post if I started a weblog called ‘Anonymous Writer.’” Jeremy’s now a Paperback (or Hardback) Writer with a capital “W,” transforming the popular Anonymous Lawyer blog into a novel.

He’s following a well-trod path to mass fiction success: when I was in law school, a certain Scott Turow had just written 1L, about his Harvard Law experience. Jeremy’s 1st book will be a novel, not law school nonfiction like Turow’s, but there’s still a parallel. (If you’ve been hiding under a rock, Turow followed with repeat bestselling novels).

Jeremy has a problem that probably hits home for many solo/small firm lawyers. (It does for me, at times.) He gripes:

My boss needs to be fired. He lets me come in late, he lets me leave early, he doesn’t stop me from spending hours doing things completely unrelated to work [e.g., blogging?], and he gives me unlimited vacation days. He doesn’t hold me to deadlines, he accepts lame excuses for why I don’t get anything done, and he refuses to impose any sort of structure on the work day. He’s pathetic. The problem is that I can’t fire him because he’s me. I’m a terrible boss.

A related malady Jeremy fights is a variant of writer’s block rooted in the derivation of Anonymous Lawyer from real-life large-firm experiences:

What made Anonymous Lawyer resonate . . . was that it was real. . . . But now that it’s been a year since I was at a firm, it’s hard to make it all seem so raw and fresh again. What I had to say, in a lot of ways I feel like I’ve said it.

Jeremy wonders whether “the best thing I could do would be to look for a part-time job.”

My readers know I’m not shy about giving general advice (it’s free advice, never legal advice of course, and you get what you pay for). So, Jeremy (I’m sure you’re reading this), here goes . . . . I’m assuming you have a contract for your book and live in a major city full of thousands of lawyers. Follow that impulse and get a job. But it’s not a part-time job. It’s full time. If you look hard enough you may find some lawyer or firm who will appreciate what you’re doing and not fret too much about being anonymously reflected in a negative light.

You offer to work for next-to-nothing in lawyer terms (e.g., $20,000/year). You do some associate grunt work, committing only to bill $50,000/year (250 hours @ $200) (a modest profit for the firm, not counting overhead); accept a clerical cubicle for an office to cut overhead; and get the right to just “hang out,” attending depos, etc. — on a nonbillable basis if appropriate. You go to work every day at least 9-5 and spend as much time writing your novel as you have time and inspiration.

What do they get? A bestselling author and attendant publicity. A talented Harvard Law grad. A cheap way to impress opposing counsel with the fact they’re heavily staffing the cases you sit in on. Unrealistic? Maybe. Worth a shot? Probably.

Serendipity: Immediately after I wrote about Jeremy’s plight, I learned of another blawger taking the plunge into full-time writing.

Scheherazade, in her blog Stay of Execution (In which Scheherazade postpones the inevitable with tales of law and life….), ruminates colorfully and productively in a post entitled: “About Leaving Law and Trying To Write”

I say colorfully because she doesn’t just say “I’m confident of my writing ability, but afraid I lack the necessary discipline and marketing skills,” though this is what she means. Instead, she pens an anxious and vivid metaphor for insecurity that I find reminiscent of my own “school dreams”: low-grade nightmares that still haunt my sleep periodically (decades past graduation) in which I’ve been unable to make it to a single class all semester, forgetting when and where class is, and stumbling on a myriad of other obstacles and distractions frustrating my studies — but I have to take the final anyway.

Scheherazade evokes the same anxious self-doubts as my nightmares, using the remarkable metaphor of serving ineptly as Stephen Hawking’s caretaker:

I think that I am a natural writer. I think it is what I was born to do. . . . But I don’t particularly have discipline or focus. I don’t have a promoter inside me. I don’t know how to work or how to develop or package or sell my writing. . . .

I’m terrified. . . . I hate my clumsy ignorance about how to write, how to submit writing, what to select and how to tailor my writing and pitch my materials to people who might want to publish it. . . . I feel like I’m Stephen Hawking’s caretaker, and all I have to do is get him his breakfast and drive him to the lab for some big meeting with a bunch of physicists, and I forget what foods he’s allergic to and I can’t start the car and then I can’t read the map and here’s Stephen Hawking with all his potential and all these people who want to hear what’s there in his head and me, the klutzy hired help, is getting stuck in traffic and going the wrong way down a one-way street and not able to find a parking place and he’s going to miss the conference and the world is never going to hear what he had to say.

Scheherazade: With writing like that [and like this], you’ll make it as a writer of some kind, somehow.

Right now, you’re both Hawking and the caretaker now, but if the Hawking in you needs to fire the “klutzy hired help” and bring in a qualified expert, do so. Or get the klutzy help some training; and make her study up on mapreading, plan the route carefully, leave early, and listen to the traffic reports.

Hawking deserves the best, and you owe it to yourself to get it for him, one way or the other: the world needs to hear what he has to say.. That’s why I say this post was productive. By writing about your problem you took big steps towards recognizing and solving it. The anxiety reflected in your metaphor, like that in my “school dreams,” indicates a salutary level of conscientiousness and ambition.

Finally (in the writing category), for Blawgers and wannabe Blawgers interested in writing in this medium, DennisKennedy.com informs us that this month’s Law Practice Magazine focuses on blogging, linking to this summary of the various articles, and particularly noting Will Hornsby’s piece on ethical implications of blawging, as well as the roundtable article on the future of lawyer blogging.

Here, There and Everywhere (misc. whining and links)

This editing task is exhausting. It’s so late Sunday night (make that early Monday morning) that I’m pooping out and just dropping a few more miscellaneous quick links here. Hey, editors: how about switching to a Friday 5:00 PM deadline — or even earlier?

[Of course, it's all Personal Life George's fault. But I know he'll just blame Lawyer George. Whine, whine, whine. And the fact is, if Blogger George hadn't wanted to do such a fine, bang-up, funky, weird, retro multimedia job with this (he's a gosh-darn workaholic and freakin' perfectionist too!) this'd been done hours ago.]

Evan Schaeffer’s Legal Underground has these two:

“Guest Post: The Power to Do Good”

“The Stankowski Report #9: Ten Things Every New Associate Needs to Know”

Beldar Blog: “Beldar gets lucky.” Guy my age has slight heart attack, gets couple stents, back blogging within days.

Take care, dude. Don’t overdo it at first; then make all those lifestyle changes we tend to delay . . .

And now don’t forget:

Blawg Review has information about next week’s host, and
instructions how to get your blawg posts reviewed in upcoming issues.

(And now, Lawyer George will try to choke Blogger George . . . It won’t be pretty, but I think they’re relatively well-matched and will both survive. Social-Life George will hang out with his family and stay out of the way until the fight is over).

[Update: Lawyer George stayed home Monday to recover from the fight; Blogger George enjoyed watching favorable links and comments come in (thank you one and all); and, best of all, Personal-Life George spent the afternoon at the pool doing absolutely nothing and then went to an outdoor concert-in-the-park with his wife and boys.]

Photo Credits (top to bottom):
sooz, dotpolka/Caroline Härdter, mrebert, cobalt123, zenia, cobalt123,
Esteban Cavrico, HippieDude, HyperBob, eris23, superterrific, lightpainter.
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    • Posted by George Lenard
    on July 18, 2005
    General

    If you enjoyed this post, please consider leaving a comment or subscribing.

    Comments
    Comment by Mike on July 18, 2005 @ 11:46 am

    Wow. This is da bomb. Awesome job.

    Comment by esq. on July 18, 2005 @ 10:00 pm

    Excellent job. Thank you for puuting in the effort. Very enjoyable.

    Comment by Editor 'n' Chef on July 18, 2005 @ 11:06 pm

    I’d like to have seen more of Sherry.

    Pingback by Blawg Review #124; Labor Day Special Historical Edition - George’s Employment Blawg: St. Louis labor & employment lawyer looks at HR, labor law, and today’s workplace on September 3, 2007 @ 11:31 am

    [...] About this post: Each weekly issue of Blawg Reviewis made up of article submissions selected from the best recent law blog posts. The blogger that puts together the Blawg Review carnival each week is called the “host.” This week, I have the honor, as I did for the mind-blowing, rockin’ #15. [...]

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